Vijaykumar P. Shah, , Ahmedabad vs Assessee

अपीलाथ / अपीलाथ / (Appellant) ू यथ यथ / थ / (Respondent)

Assessee(s) by : Shri M. K. Patel, AR Revenue by : Shri Dinesh Singh, Sr. DR.

सु नवाई क# तार%ख / Date of Hearing : 16/04/2015 घोषणा क# तार%ख / Date of Pronouncement: 24/04/2015

आदे श/O R D E R

PER G.D. AGRAWAL, VICE PRESIDENT:

This is an appeal filed by the assessee and is directed against the order of the Commissioner of Income-tax, Ahmedabad-1, Ahmedabad dated 25.02.2014, passed u/s 263 of the Act, for the Assessment Year 2009-10.

2. The appeal filed by the assessee is late by 43 days. The assessee has filed an application for condonation of delay, which is duly supported by the affidavit.

3. At the time of hearing before us, the ld. Counsel explained that on 8th April 2014 the assessee's maternal grandmother expired. The assessee ITA No.2073/Ahd/2014 Shri Vijaykumar P Shah V CIT AY: 2009-10 2

thereafter remained busy and perturbed for sometime which delayed the filing of the appeal by 43 days.

4. The ld. Departmental Representative, on the other hand, objected to the condonation of delay.

5. After considering the facts of the case and submissions of both the sides, we deem it proper to condone the delay and admit the appeal for hearing on merits. In this appeal by the assessee, following grounds were raised:-

1. That on facts, and in law, the learned CIT has grievously erred in assuming jurisdiction u/s 263 of the Act.

2. That on facts, and in law, the learned CIT has grievously erred in setting aside the assessment order passed u/s 143(3) of the Act, without establishing that it is erroneous and prejudicial to the interest of Revenue.

3. The appellant craves leave to add, alter, amend any ground of appeal.

6. We have heard both the sides and perused the material placed before us. The Commissioner of Income-tax treated the assessment order dated 02.12.2011 to be erroneous and prejudicial to the interest of the Revenue on the ground that the Assessing Officer allowed the claim of Rs.20.79 lacs u/s. 54F without proper examination. At the time of hearing, the ld. Counsel furnished before us a photocopy of the order-sheet entry recorded by the Assessing Officer during assessment proceedings and the reply furnished by the assessee thereon. He pointed out that during the assessment proceedings, hearing took place several times; and on two occasions, a specific query with regard to allowability of deduction 54F was raised. In this regard, he referred to order-sheet entry dated 19.07.2011 and 03.08.2011. He also referred to the assessee's reply in this regard dated 29.07.2011 and ITA No.2073/Ahd/2014 Shri Vijaykumar P Shah V CIT AY: 2009-10 3

23.08.2011, wherein the assessee justified the deduction of claim u/s 54F. The ld. Departmental Representative was directed to produce the assessment records. He produced the assessment records before us and from the original order-sheet entry also it is seen that the Assessing Officer did raise the query with regard to the eligibility of deduction u/s 54F by the assessee. In the above circumstances, we are unable to agree with the findings of the Commissioner of Income-tax that the Assessing Officer did not make proper inquiry in this regard. It is true that in the assessment order, there is no specific discussion with regard to the allowability of deduction u/s 54F; however, from the record, which is produced before us, it is evident that the Assessing Officer did make sufficient enquiries in this regard. Therefore, the assessment order cannot be said to be erroneous on the ground that the Assessing Officer failed to conduct the inquiry. That merely because in the opinion of the Commissioner of Income-tax some more inquiry was required would not make the assessment order erroneous in the light of provisions of Section 263. While taking this view, we derive support from the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Arvind Jewellers, reported in [2003] 259 ITR 502 (Guj.), wherein their Lordships of the Hon'ble High Court has held as under:

"Held, that the finding of fact by the Tribunal was that the assessee had produced relevant material and offered explanations in pursuance of the notices issued under section 142(1) as well as section 143(2) of the Act and after considering the material and explanations, the Income-tax Officer had come to a definite conclusion. Since the material was there on record and the said material was considered by the Income-tax Officer and a particular view was taken, the mere fact that different view can be taken should not be the basis for an action under section 263. The order of revision was not justified."

ITA No.2073/Ahd/2014 Shri Vijaykumar P Shah V CIT AY: 2009-10 4

Respectfully following the above decision of Hon'ble Jurisdictional High Court, we quash the order of the Commissioner of Income-tax passed u/s 263 of the Act and restore the assessment order dated 02.12.2011.

7. In the result, the assessee's appeal is allowed.

Order pronounced in the Court on 24th April, 2015 at Ahmedabad.

Sd/- Sd/-

(S. S. GODARA) (G.D. AGRAWAL) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad; Dated 24/04/2015 Biju T., PS

षत Copy आदे श क# ूितिल+प अमे+षत/ of the Order forwarded to : 1. अपीलाथ / The Appellant 2. ू यथ / The Respondent. 3. संबंिधत आयकर आयु. / Concerned CIT 4. आयकर आयु.(अपील) / The CIT(A)

5. +वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file.

/ BY ORDER, आदे शानु सार

TRUE COPY

Dy./Asstt.Registrar) उप/सहायक पंजीकार ( उप/ अिधकरण, अहमदाबाद / आयकर अपीलीय अिधकरण, ITAT, Ahmedabad